The Family and Medical Leave Act, or “FMLA,” is a federal labor law that was passed in 1993. The FMLA requires covered employers to provide their employees with job protected and unpaid leave for qualified medical and family circumstances.
The Act provides rights and protections associated with medical leave for employees, and may continue the unpaid leave for up to twelve weeks. Additionally, the Act requires that covered employers maintain the health benefits for all eligible workers, as if they were still actively working. During this time the employee’s position is protected, and as such they may not be terminated.
As a federal law, the Act preempts state laws, including when those laws conflict with each other. What this means is that employees in states that offer little or no family and medical leave could still be protected under the FMLA. While some states have laws providing more coverage, most states do not provide more leave than what they are required to provide by federal law.
It is important to note that not all employers are required to provide the benefits required by the FMLA. Federal law has determined that employers are required to provide all eligible employees with leave if the employer meets one of the following criteria:
- The employer is a state, local, or federal governmental agency;
- The employer is a private business conducting interstate commerce, with fifty or more employees that work twenty or more weeks in one year; or
- The employer engages in commerce, or an industry that affects commerce. Most businesses meet the requirement for being commerce, and/or affecting commerce.
According to the FMLA, employers cannot terminate an employee who takes family or medical leave for any reason as outlined in the FMLA. What this means is that employees working for employers who are covered by the FMLA have a right under federal law to take leave if they qualify. Employers cannot reprimand the employee for taking this leave, and they cannot discriminate when granting FMLA leave.
When Can I Take Time Off Under The FMLA?
In order to be eligible for FMLA coverage, an employee must meet all three of the following criteria:
- Worked for the employer for the last twelve months;
- Worked at least 1,250 hours over the last twelve months; and
- They must be employed by an employer who is covered under the Family and Medical Leave Act.
Additionally, the employee must experience a qualifying life event that would trigger the need for the FMLA. Some of the most common examples of qualifying life events include, but may not be limited to:
- The birth and care of a newborn child;
- Placing an adopted or fostered child that was placed within one year since applying for leave;
- The employee caring for an immediate family member with a serious health condition;
- The employee has a serious condition themselves which makes them unable to perform essential functions of their job, which includes pregnancy and/or prenatal care; and
- The employee’s spouse, child, or parent is an active military member called to active duty.
Additionally, employees can take up to 26 weeks of leave in twelve months, if they take the leave in order to care for a spouse, child, parent, or next of kin that is a service member who has experienced a serious injury or illness. Generally speaking, every employee is limited up to 26 weeks of combined leave over a twelve month period, as well as the following benefits:
- Twelve weeks of unpaid leave;
- Medical and/or health benefits during their leave; and
- The restoration of their original job once they return to work, once their leave has ended.
Employees cannot lose their job if they take Family and Medical Leave Act leave. Further, employers cannot reprimand employees for taking FMLA leave, and employers may not interfere with the FMLA protected rights of the employee. Additionally, employers cannot use FMLA leave as an adverse factor in any future employment evaluations, such as promotions or raises.
What Is FMLA Protected Leave?
To reiterate, under the FMLA, the employer must return the employee to their previous position. Alternatively, they may provide them with a nearly identical or equivalent position. If an employer fails to do so, an employee may file a civil lawsuit against them in court.
However, it is important to note that this right is not unlimited. An example of this would be how if an employer lays people off through a reduction in force, an employee who is taking FMLA leave can be laid off just as the other employees.
Additionally, employers can deny job restoration to key employees. A “key employee” is an employee that is paid a salary, and is eligible for FMLA leave. They must be part of the highest-paid ten percent of the workforce that the employer employs, anywhere within 75 miles from the worksite of the employee. The FMLA allows denial of job restoration to a key employee if returning that employee to their former position will cause significant economic injury to the employer’s operations.
According to the FMLA, employers must maintain group health coverage for an employee who is taking FMLA leave. If the employer generally covers the costs of the health care premiums, they must pay the premiums for an employee who is on leave. If they generally require an employee to contribute to premiums, the employer can require employees who are on leave to continue to contribute to those premiums in the same amount as they did before taking leave.
In terms of employee responsibilities, employees must give employers notice of intent to take leave as soon as is practical, generally at least 30 days’ notice before going on leave. If the need for leave cannot be foreseen, the employee must give as much notice as is practical.
What Else Should I Know About Taking Leave Under The FMLA?
Once again, an employee can take FMLA leave for the following reasons:
- To provide caretaker services for a member of their immediate family, who must have a serious health condition. Immediate family members include children, spouses, and parents. Immediate family members do not include:
- In-laws;
- Brothers and sisters; and
- Grandparents.
- To take medical leave when they themselves cannot work because of a serious health condition. This condition must render the employee unable to perform essential functions of their employment; and/or
- For qualifying emergencies arising from their child, spouse, or parent who is on covered active duty, or is called to active duty status in the Reserves, Regular Armed Forces, or National Guard.
Whether being denied leave by your employer constitutes FMLA discrimination depends on many different factors. An example of this would be how according to the law, an employer is only required to provide certain types of leave, and all of them are on an unpaid basis.
Benefits are all completely at the discretion of the employer. This includes paid vacation days, minor sick leave, and time off for local holidays.
However, they must still refrain from engaging in discriminatory practices when granting benefits during the various types of leave. What this means is that if an employee is denied leave to take care of a sick family member, this could be considered discriminating against an individual’s familial status. This is illegal in a number of states, including:
- Alaska;
- Connecticut;
- Delaware;
- District of Columbia; and
- New York.
It is important to note that the terms of the FMLA are considerably strict. This is why you should ensure that you are covered by its conditions and can exercise its afforded rights before making any requests for family and/or medical leave.
Do I Need A Lawyer For Taking Leave Under The FMLA?
If you are entitled to FMLA leave and your employer disputes or refuses your request, you should contact an employment lawyer. Your employment attorney can help you understand your legal rights and options under your state’s specific employment laws, and will also be able to represent you in court, as needed, should the need for legal action arise.
